Monday, October 24, 2016

Eichensehr on Foreign Governments as SCOTUS Amici

Kristen Eichensehr has a post up at SCOTUSblog discussing her recent article Foreign Sovereigns as Friends of the Court, 102 Va. L. Rev. 289 (2016). Here’s the article abstract:

This Article presents the first systematic study of foreign sovereign amicus briefs in the Supreme Court. Based on an analysis of the briefing, oral arguments, and opinions in every Supreme Court merits case involving a foreign sovereign amicus since 1978, this Article argues that foreign sovereigns do and should play an important role in shaping foreign relations law. 

The Article begins with an empirical investigation of which sovereigns file, the types of cases in which they file, and the nature of the arguments they make. To a surprising extent, the Court cites foreign sovereign briefs, discusses them at argument, and even grants oral argument time to foreign sovereign amici — all despite the widespread perception that the Court is ambivalent or even hostile to foreign and international law. 

The Article then situates the Supreme Court’s treatment of foreign sovereign amici within a larger story about how the Court approaches foreign relations questions. Although scholars have attempted to systematize and explain the deference the Court gives to the U.S. government in foreign relations cases, they have largely ignored the role that foreign sovereign amici play in the very same disputes. Accounting for the role of foreign sovereign amici challenges existing scholarly accounts of how and why the Court defers to the U.S. government on foreign relations issues. 

The Article argues that the reasons underlying the Court’s deference to the U.S. government — the executive’s expertise, status as a lawmaker, and exercise of control over relevant policies — often apply to foreign sovereigns as well. This overlap in justifications for deference supports treating foreign sovereign amici similarly to the U.S. government in cases involving “international facts,” treaty interpretation, and customary international law. In cases involving foreign law, the justifications for deference suggest that foreign sovereign amici should receive more deference than the U.S. government. 

In sum, attention to foreign sovereign amici sheds light on executive-to-judicial transnational networks and provides a more nuanced picture of the competing influences on the Court’s foreign relations jurisprudence.




October 24, 2016 in Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Tuesday, October 11, 2016

SCOTUS grants cert to review 9/11 lawsuits; questions presented involve Bivens, qualified immunity & pleading standards

Today the Supreme Court granted certiorari in three cases, which it then consolidated. The cases are Ziglar v. Turkmen (No. 15-1358), Ashcroft v. Turkmen (No. 15-1359), and Hasty v. Turkmen (No. 15-1363). The petitioners are federal officials challenging the Second Circuit’s decision (Turkmen v. Hasty, 789 F.3d 218 (2015)) refusing to dismiss certain claims by plaintiffs alleging they were subjected to discriminatory and punitive treatment during their confinement following the 9/11 attacks. One aspect of these cases that could prove quite important is that Justices Sotomayor and Kagan “took no part in the consideration or decision of these petitions” and have apparently recused themselves.

The three cases present slightly different but overlapping questions relating to Bivens, qualified immunity, and pleading standards. Not surprisingly, there are echoes of the Court’s 2009 decision in Ashcroft v. Iqbal, which has had a significant impact on pleading standards generally (Iqbal is already the #4 most-cited Supreme Court decision in history). 

You can find all the cert-stage briefing—and follow the merits briefs as they come in—by checking out the SCOTUSblog casefiles (Ziglar; Ashcroft; Hasty). Here are the questions presented in full...

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October 11, 2016 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (0)

Thursday, October 6, 2016

Venezuela v. Helmerich: Protecting Foreign Sovereigns At What Cost? (Guest Post by Simona Grossi)

Simona Grossi presents the following guest post on one of the important cases on the Supreme Court’s docket this Term:

[Update: Simona has also posted on SSRN a more detailed essay analyzing the case.] 

* * *

On Wednesday, November 2, the Supreme Court will hear oral arguments in Venezuela v. Helmerich & Payne International, to decide whether to make it harder for the plaintiffs to plead jurisdiction over a foreign state under the Foreign Sovereign Immunities Act (“FSIA”). FSIA provides a framework for determining when a foreign state may be subject to the jurisdiction of the federal or state courts of the United States, and when it shall be immune from such jurisdiction. In particular, and specifically at issue in Helmerich, is the expropriation exception under §1605(a)(3), which strips the foreign sovereign of immunity when, among other things, the foreign sovereign has engaged in a taking of property in violation of international law.

The plaintiffs in the case are Helmerich & Payne International Drilling Co. (H&P-IDC), an Oklahoma-based corporation, and one of its subsidiary, Helmerich & Payne de Venezuela (H&P-V), incorporated under Venezuela law. They sued the Bolivarian Republic of Venezuela and two state-owned corporations, Petróleos de Venezuela, S.A. (PDVSA) and PDVSA Petróleo, (collectively, “PDVSA”), before the United States District Court for the District of Columbia claiming breach of contract and a taking of property in violation of international law. They had entered into a series of contracts for oil-drilling with PDVSA, and defendants breached those contracts by failing to make timely payments for the services rendered, and by unlawfully expropriating plainitffs’ rigs. Venezuela and PDVSA moved to dismiss the complaint on the grounds that neither FSIA exception applied and that the act-of-state doctrine—under which American courts “will not question the validity of public acts (acts jure imperii) performed by other sovereigns within their own borders”—bars the suit altogether. The district court held that the plaintiffs had standing to assert a taking in violation of international law and that the claim was not barred by the act-of-state doctrine.

On appeal, Venezuela argued that the expropriation exception in the FSIA—denying foreign sovereign immunity “in any case . . . in which rights in property taken in violation of international law are in issue,” 28 U.S.C. § 1605(a)(3)—did not apply because H&P-V was a Venezuelan national and, as such, under United States v. Belmont, 301 U.S. 324, 332 (1937), it could not claim a taking in violation of international law. Relying on Banco Nacional de Cuba v. Sabbatino, 307 F.2d 845, 861 (2d Cir. 1962), and the Restatement (Third) of Foreign Relations Law, H&P-V rebutted that the defendants had unreasonably discriminated against it on the basis of its sole shareholder’s foreign nationality, thus implicating a discrimination exception to the Belmont rule. The D.C. Circuit found that H&P-V had satisfied the Circuit’s standard for surviving a motion to dismiss in a FSIA case— this standard allows a jurisdictional dismissal only if the federal claim is wholly insubstantial and frivolous—and held the taking exception applicable. Hence, Venezuela would not be immune from the jurisdiction of the court.

Venezuela petitioned the Supreme Court for review arguing that plaintiffs had failed to plead facts sufficient to support a claim of discriminatory taking. The question before the Supreme Court is whether the pleading standard for alleging that a case falls within the FSIA's expropriation exception is more demanding than the standard for pleading jurisdiction under the federal-question statute. Petitioners argue that for this case to fall within the jurisdiction of the court, plaintiffs must show “an actual violation of customary international law” and plead facts sufficient to “establish the existence of all of the elements set out in the relevant statutory exception.” (Brief for Petitioners at 14-15). Essentially, Venezuela is claiming that the plaintiffs should prove their case to have access to the jurisdiction of the court. Surprisingly, or perhaps not much so, Venezuela’s demand for this high jurisdictional threshold is fully endorsed by the United States, that has filed an amicus brief in support, “to ensure that the foreign state actually receives the protections of immunity if no exception applies, to preserve the dignity of the foreign state and comity between nations, and to safeguard the interests of the United States when it is sued in foreign courts.” (U.S. Amicus Brief, at 8)

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October 6, 2016 in Federal Courts, Supreme Court Cases | Permalink | Comments (0)

Thursday, September 29, 2016

SCOTUS Cert Grants – the Long Conference

Today the Supreme Court issued the order list following its end-of-the-summer “Long Conference.” It granted certiorari in nine cases. Here are some that may be of particular interest...

McLane Co. v. EEOC (No. 15-1248): Whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do, consistent with this Court’s precedents concerning the choice of standards of review.

Goodyear Tire & Rubber Co. v. Haeger (No. 15-1406) (consolidated with Musnuff v. Haeger (No. 15-1491)): Is a federal court required to tailor compensatory civil sanctions imposed under inherent powers to harm directly caused by sanctionable misconduct when the court does not afford sanctioned parties the protections of criminal due process?

Lewis v. Clarke (No. 15-1500): Whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment.




September 29, 2016 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Wednesday, September 28, 2016

Vazquez and Vladeck on a Constitutional Right to Collateral Post-Conviction Review

Carlos Vazquez and Steve Vladeck have posted on SSRN a draft of their article, The Constitutional Right to Collateral Post-Conviction Review, which will be published in the Virginia Law Review. Here’s the abstract:

For years, the prevailing academic and judicial wisdom has held that, between them, Congress and the Supreme Court have rendered post-conviction habeas review all-but a dead letter. But in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court may have dramatically upended that understanding in holding — for the first time — that there are at least some cases in which the Constitution itself creates a right to collateral post-conviction review, i.e., cases in which a state prisoner seeks retroactively to enforce a “new rule” of substantive constitutional law under the familiar doctrine of Teague v. Lane.

On the surface, Montgomery held only that state courts are required to employ Teague’s retroactivity framework when and if they adjudicate habeas petitions relying on new substantive rules of federal law. But, in reaching that conclusion, the Court clarified that Teague’s holding that new substantive rules of federal law are retroactively applicable on collateral review was a constitutional one, a holding that, as we explain, was both novel and important.

We next consider which courts — state or federal — have the constitutional obligation to provide the constitutionally required collateral review recognized in Montgomery. Either way, the implications of Montgomery are far-reaching. To conclude that the state courts must provide collateral review would run counter to the conventional wisdom that states are under no obligation to permit collateral attacks on convictions that have become final. On the other hand, the conclusion that federal courts must have jurisdiction to grant such collateral review is in significant tension with the Madisonian Compromise. In our view, the Supreme Court’s Supremacy Clause jurisprudence establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts — even if the state has not chosen to provide collateral post-conviction relief for comparable state-law claims. The state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction over such claims. Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners.

Finally, we examine some of the important questions raised by the conclusion that state and federal prisoners have a constitutional right to collateral relief. Although the questions are complex, and not all of the answers are clear, the uncertainties surrounding some of the contours of the remedy recognized in Montgomery should not obscure the fact this seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review, a result that could have a breathtaking impact on both commentators’ and courts’ understanding of the relationship between collateral post-conviction remedies and the Constitution.





September 28, 2016 in Federal Courts, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Wednesday, September 21, 2016

Ever Wonder Which SCOTUS Cases Have Been Cited the Most?

We’re just days away from a new U.S. Supreme Court Term. With some notable exceptions, most folks pay attention to Supreme Court decisions not because of who wins or loses those particular cases, but because of what those decisions mean for the law going forward.

So which Supreme Court decisions have been cited the most? The top-ranked cases, it turns out, are right in your 1L civil procedure syllabus. My article that came out this spring (The Rise and Fall of Plausibility Pleading?) includes some data on this from the Shepard’s citation service. In terms of citations by federal courts, the Top-5 are all civil procedure cases: the 1986 summary judgment trilogy (#1, #2, #5) plus Twombly (#3) and Iqbal (#4). Here’s the Top-20:



Federal Court Citing References


Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)



Celotex Corp. v. Catrett, 477 U.S. 317 (1986)



Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)



Ashcroft v. Iqbal, 556 U.S. 662 (2009)



Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)



Strickland v. Washington, 466 U.S. 668 (1984)



Thomas v. Arn, 474 U.S. 140 (1985)



Conley v. Gibson, 355 U.S. 41 (1957)



Slack v. McDaniel, 529 U.S. 473 (2000)



Haines v. Kerner, 404 U.S. 519 (1972)



McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)



Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978)



Neitzke v. Williams, 490 U.S. 319 (1989)



Richardson v. Perales, 402 U.S. 389 (1971)



Estelle v. Gamble, 429 U.S. 97 (1976)



Williams v. Taylor, 529 U.S. 362 (2000)



Farmer v. Brennan, 511 U.S. 825 (1994)



Miller-El v. Cockrell, 537 U.S. 322 (2003)



Erickson v. Pardus, 551 U.S. 89 (2007)



Harlow v. Fitzgerald, 457 U.S. 800 (1982)


You can find the full Top-100 in Appendix A of the article (p.59-62 of the pdf file).





September 21, 2016 in Federal Courts, Recent Scholarship, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (3)

Friday, September 9, 2016

Strong on Diversity Jurisdiction & Commercial Trusts After Americold

S.I. Strong has posted on SSRN a draft of her article, Congress and Commercial Trusts: Dealing With Diversity Jurisdiction Post-Americold, which will be published in the Florida Law Review. Here’s the abstract:

Commercial trusts are one of the United States’ most important types of business organizations, holding trillions of dollars of assets and operating nationally and internationally as a “mirror image” of the corporation. However, commercial trusts remain underappreciated and undertheorized in comparison to corporations, often as a result of the mistaken perception that commercial trusts are analogous to traditional intergenerational trusts or that corporations reflect the primary or paradigmatic form of business association.

The treatment of commercial trusts reached its nadir in early 2016, when the U.S. Supreme Court held in Americold Realty Trust v. ConAgra Foods, Inc. that the citizenship of a commercial trust should be equated with that of its shareholder-beneficiaries for purposes of diversity jurisdiction. Unfortunately, the sheer number of shareholder-beneficiaries in most commercial trusts (often amounting to hundreds if not thousands of individuals) typically precludes the parties’ ability to establish complete diversity and thus eliminates the possibility of federal jurisdiction over most commercial trust disputes. As a result, virtually all commercial trust disputes will now be heard in state court, despite their complexity, their impact on matters of national public policy and their effect on the domestic and global economies. 

Americold will also result in differential treatment of commercial trusts and corporations for purposes of federal jurisdiction, even though courts and commentators have long recognized the functional equivalence of the two types of business associations. Furthermore, as this research shows, there is no theoretical justification for this type of unequal treatment. 

This Article therefore suggests, as a normative proposition, that Congress override Americold and provide commercial trusts with access to federal courts in a manner similar to that enjoyed by corporations. This recommendation is the result of a rigorous interdisciplinary analysis of both the jurisprudential and practical problems created by Americold as a matter of trust law, procedural law and the law of incorporated and unincorporated business associations. The Article identifies two possible Congressional responses to Americold, one involving reliance on minimal diversity, as in cases falling under 28 U.S.C. §§1332(d) and 1369, and the other involving a statutory definition of the citizenship of commercial trusts similar to that used for corporations under 28 U.S.C. §1332(c). In so doing, this Article hopes to place commercial trusts and corporations on an equal footing and avoid the numerous negative externalities generated by the Supreme Court’s decision in Americold.




September 9, 2016 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, May 18, 2016

SCOTUS Vacates Ninth Circuit in Spokeo, Remands for New “Concreteness” Inquiry

The Supreme Court issued Spokeo, Inc. v. Robins, No. 13-1339, earlier this week.  In a majority opinion unlikely to make anyone happy, the Court vacated the Ninth Circuit’s decision, which held that Robins had adequately alleged Article III standing, and remanded.

A Brief Recap

Robins’ complaint alleged that Spokeo maintained an inaccurate consumer report about him on its website, in violation of the Fair Credit Reporting Act’s requirement that consumer reporting agencies “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”  In particular, Robins alleged that a photo purporting to be Robins on the site wasn’t him, and that the site incorrectly stated that he was in his 50s, married, employed in a professional or technical field, has children, has a graduate degree, and is in the top 10% for wealth. 

The upshot of this disseminated misinformation, Robins alleged, was that when he was “out of work” and “actively seeking employment,” he encountered “[imminent and ongoing] actual harm to [his] employment prospects.”  

The Majority Opinion

You wouldn’t know that Robins alleged actual harm to his employment prospects by reading the majority opinion, which didn’t mention it.  Instead, the majority opinion by Justice Alito (joined by Roberts, Kennedy, and Thomas and inexplicably by Breyer and Kagan) managed to further stultify constitutional standing doctrine by seizing on the Court’s prior repetition of the phrase “concrete and particularized” in describing the “injury in fact” required for standing.  The Court now finds it obvious that these are separate, distinct requirements: (1) concrete and (2) particularized (although the Court cited no case that actually discussed these terms separately).  The Ninth Circuit, held the majority, applied the “particularized” branch but not the “concreteness” branch.

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May 18, 2016 in Class Actions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Tuesday, March 29, 2016

The Rise and Fall of Plausibility Pleading?

My latest article, The Rise and Fall of Plausibility Pleading?, has just been published in the Vanderbilt Law Review. It builds on some of my earlier work on pleading (here and here), focusing on the Supreme Court’s post-Iqbal decisions on pleading standards (e.g., Johnson v. City of Shelby; Wood v. Moss; Matrixx Initiatives, Inc. v. Siracusano). Here’s the abstract:

The Supreme Court's 2007 decision in Bell Atlantic Corp. v. Twombly and its 2009 decision in Ashcroft v. Iqbal unleashed a torrent of scholarly reaction. Commentators charged these decisions with adopting a new pleading regime, "plausibility pleading," that upended the notice-pleading approach that had long prevailed in federal court. Whether a complaint could survive a motion to dismiss — it was argued — now depends on whether the court found the complaint plausible, allowing courts to second-guess a complaint’s allegations without any opportunity for discovery or consideration of actual evidence. Lower courts began to cite Twombly and Iqbal at a remarkably high rate, and empirical work revealed their effect on both dismissal rates and litigant behavior.

Although Twombly and Iqbal were troubling on many levels, the rise of a newly restrictive form of plausibility pleading was not inevitable. There was — and still is — a path forward that would retain the notice-pleading approach set forth in the text of the Federal Rules themselves and confirmed by pre-Twombly case law. This Article describes this reading of Twombly and Iqbal, and explains how more recent Supreme Court pleading decisions are consistent with this understanding. It is crucial, however, that these post-Iqbal decisions and the approach to pleading they reflect receive the same attention that accompanied Twombly, Iqbal, and the rise of plausibility pleading. Otherwise the narrative that Twombly and Iqbal compel a more restrictive pleading standard may become further entrenched, compounding the adverse effects of those problematic decisions.



March 29, 2016 in Adam Steinman, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Recent Scholarship, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (0)

Friday, March 25, 2016

SCOTUS Decision in Tyson Foods v. Bouaphakeo: Another Important Case on Class Actions

This week the Supreme Court issued its decision in Tyson Foods, Inc. v. Bouaphakeo, covered here, here, and here. Tyson Foods is one of several important class action cases on the Court’s docket this Term—and the second one decided so far. Like Campbell-Ewald back in January, the Tyson Foods decision is generally good news for proponents of class actions. By a 6-2 vote, the Court upheld class certification under Rule 23(b)(3).

Justice Kennedy wrote the majority opinion, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts wrote a separate concurring opinion, which was joined in part by Justice Alito. Justice Thomas wrote a dissenting opinion, which Justice Alito joined. All the opinions are worth a read, but below are a few highlights from Justice Kennedy’s majority opinion.

First, Justice Kennedy emphasized that the presence of some individualized issues is not fatal to Rule 23(b)(3)’s predominance requirement:

The predominance inquiry “asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues.” [2 W. Rubenstein, Newberg on Class Actions], §4:49, at 195–196. When “one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.” 7AA C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1778, pp. 123–124 (3d ed. 2005) (footnotes omitted).

Justice Kennedy also provided some important guidance on the Supreme Court’s 2011 Wal-Mart decision, clarifying that “Wal-Mart does not stand for the broad proposition that a representative sample is an impermissible means of establishing class-wide liability.” He recognized the practical reality that “[i]n many cases, a representative sample is ‘the only practicable means to collect and present relevant data’ establishing a defendant’s liability. Manual of Complex Litigation §11.493, p. 102 (4th ed. 2004).” And:

In a case where representative evidence is relevant in proving a plaintiff’s individual claim, that evidence cannot be deemed improper merely because the claim is brought on behalf of a class. To so hold would ignore the Rules Enabling Act’s pellucid instruction that use of the class device cannot “abridge . . . any substantive right.” 28 U. S. C. §2072(b).

The Court ultimately did not resolve the second question in Tyson Foods, which was originally framed as “whether a class may be certified if it contains ‘members who were not injured and have no legal right to any damages.’” After noting that Tyson Foods had “reframe[d] this argument” in its merits brief, Justice Kennedy declined to address it “because the damages award has not yet been disbursed, nor does the record indicate how it will be disbursed.” The Court therefore remanded the case, recognizing that Tyson Foods “may raise a challenge to the proposed method of allocation when the case returns to the District Court for disbursal of the award.” In his final paragraph of analysis, however, Justice Kennedy noted that the potential for “uninjured class members” to recover from the class judgment appeared to be a problem “of [Tyson Foods’] own making,” because Tyson Foods had argued against having bifurcated liability and damages proceedings.

For additional coverage, check out:


March 25, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, March 17, 2016

SCOTUS Decision on Diversity Jurisdiction: Americold Realty Trust v. ConAgra Foods

There’s a lot of attention right now on President Obama’s nomination of Merrick Garland to the U.S. Supreme Court. But I wanted to quickly flag last week’s unanimous decision on diversity jurisdiction. Justice Sotomayor’s opinion in Americold Realty Trust v. ConAgra Foods, Inc. begins:

This case asks how to determine the citizenship of a “real estate investment trust,” an inanimate creature of Maryland law. We answer: While humans and corporations can assert their own citizenship, other entities take the citizenship of their members.

The Court reaffirmed the “oft-repeated rule” that unincorporated entities take on the citizenship of all of their members (citing Carden v. Arkoma Associates, 494 U. S. 185 (1990)), and held that the “members” of this sort of Maryland-law entity included all of its shareholders:

In Maryland, a real estate investment trust is an “unincorporated business trust or association” in which property is held and managed “for the benefit and profit of any person who may become a shareholder.” Md. Corp. & Assns. Code Ann. §§8–101(c), 8–102 (2014). As with joint-stock companies or partnerships, shareholders have “ownership interests” and votes in the trust by virtue of their “shares of beneficial interest.” §§8–704(b)(5), 8–101(d). These shareholders appear to be in the same position as the shareholders of a joint-stock company or the partners of a limited partnership—both of whom we viewed as members of their relevant entities. See Carden, 494 U. S., at 192–196; see also §8–705(a) (linking the term “beneficial interests” with “membership interests” and “partnership interests”). We therefore conclude that for purposes of diversity jurisdiction, Americold’s members include its shareholders.

Justice Sotomayor concluded by recognizing—but rejecting—the argument that the citizenship of an unincorporated entity should be determined the same way as a corporation:

We also decline an amicus’ invitation to apply the same rule to an unincorporated entity that applies to a corporation—namely, to consider it a citizen only of its State of establishment and its principal place of business. See Brief for National Association of Real Estate Investment Trusts 11–21. When we last examined the “doctrinal wall” between corporate and unincorporated entities in 1990, we saw no reason to tear it down. Carden, 494 U. S., at 190. Then as now we reaffirm that it is up to Congress if it wishes to incorporate other entities into 28 U. S. C. §1332(c)’s special jurisdictional rule.


March 17, 2016 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, January 25, 2016

SCOTUS Decision in Montgomery v. Louisiana: Supreme Court Jurisdiction, State Courts, and Retroactivity

Today the Supreme Court issued a 6-3 decision in Montgomery v. Louisiana, which involves the retroactive effect of the Supreme Court’s 2012 decision in Miller v. Alabama (where the Court prohibited mandatory sentences of life without the possibility of parole for juveniles).

The case presented both an interesting question of Supreme Court jurisdiction in the context of state collateral review proceedings, and the perennial federal courts challenge of when a new constitutional right applies retroactively. The majority opinion authored by Justice Kennedy (joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Kagan & Sotomayor) concluded:

(1) The Supreme Court had jurisdiction to review a state court’s failure to recognize, in the context of state collateral review, a federal constitutional right that applies retroactively;

(2) Miller did announce “a substantive rule of constitutional law” that applies retroactively; and

(3) A state may remedy a Miller violation by extending parole eligibility to juvenile offenders.

The three dissenters were Justices Scalia, Thomas, and Alito, who disagreed both on jurisdiction and on the merits. Justice Scalia wrote a dissenting opinion that was joined by both Thomas and Alito, and Justice Thomas wrote a separate dissent as well.

Check out Lyle Denniston’s analysis on SCOTUSblog.





January 25, 2016 in Federal Courts, Recent Decisions, State Courts, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, January 22, 2016

Article on Spokeo, Inc. v. Robins Now on St. Thomas Journal of Complex Litigation Website

I'm overcoming my reticence to post twice about one of my articles, because I want to promote the law students at St. Thomas University School of Law who have labored to establish the new St. Thomas Journal of Complex Litigation (JCL).  The final version of my article, "Spokeo, Inc. v. Robins: The Illusory 'No-Injury' Class Reaches the Supreme Court," has just been posted on the JCL website.  The abstract is available on SSRN here. 

The St. Thomas JCL is pleased to accept submissions through ExpressO or Scholastica from judges, attorneys, law faculty, and law students.  Information on submissions is here.   



January 22, 2016 in Class Actions, Recent Scholarship, Standing, Supreme Court Cases | Permalink | Comments (0)

Wednesday, January 20, 2016

Today’s SCOTUS Decision in Campbell-Ewald v. Gomez

The Supreme Court issued its decision today in Campbell-Ewald Co. v. Gomez, a closely watched case on class actions, Article III, and mootness (covered earlier here and here). Justice Ginsburg’s majority opinion begins:

Is an unaccepted offer to satisfy the named plaintiff ’s individual claim sufficient to render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated? This question, on which Courts of Appeals have divided, was reserved in Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___, ___, n. 4 (2013) (slip op., at 5, 6, n. 4). We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists.

Justice Ginsburg’s opinion is joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Thomas adds a sixth vote, but writes a separate concurring opinion. Chief Justice Roberts writes a dissenting opinion, joined by Justices Scalia and Alito, and Justice Alito writes a dissenting opinion as well.




January 20, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, January 15, 2016

SCOTUS Cert Grant in Microsoft v. Baker: Appellate Review of Orders Denying Class Certification

Today the Supreme Court granted certiorari in Microsoft Corp. v. Baker, limited to the following Court-generated question:

Whether a federal court of appeals has jurisdiction under both Article III and 28 U.S.C. § 1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.



January 15, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, December 14, 2015

SCOTUS Decision in DIRECTV v. Imburgia: Federal Arbitration Act Overrides State Contract Law (Again)

Today the Supreme Court issued its decision in DIRECTV, Inc. v. Imburgia. The vote was 6-3, with Justice Breyer writing the majority opinion. Justice Thomas writes a dissenting opinion, and Justice Ginsburg writes a dissenting opinion joined by Justice Sotomayor.

As covered earlier here and here, Imburgia is another case involving the Federal Arbitration Act (FAA). The particular issue is whether the FAA allows California to construe an arbitration provision referring to California state law (the “law of your state”) to mean state law as it existed prior to the U.S. Supreme Court invalidating certain aspects of California contract law in its 2011 decision in AT&T Mobility LLC v. Concepcion. That was how the California Court of Appeal construed the arbitration agreement in Imburgia, but Justice Breyer’s majority opinion disagrees, concluding instead that such a construction itself violates the FAA by failing to “place arbitration contracts on equal footing with all other contracts.”

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December 14, 2015 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (1)

Recent Scholarship: Patent Litigation; Supreme Court Justice Loyalty; “Litigation Trolls”

Three new articles recently posted on SSRN:

1. Christopher Beauchamp (Brooklyn Law School) has posted The First Patent Litigation Explosion, forthcoming in Yale Law Journal.


The twenty-first century “patent litigation explosion” is not unprecedented. In fact, the nineteenth century saw an even bigger surge of patent cases. During that era, the most prolific patent enforcers brought hundreds or even thousands of suits, dwarfing the efforts of today’s leading “trolls.” In 1850, New York City and Philadelphia alone had ten times more patent litigation, per U.S. patent in force, than the entire United States in 2013. Even the absolute quantity of late-nineteenth-century patent cases bears comparison to the numbers filed in recent years: the Southern District of New York in 1880 would have ranked third on the list of districts with the most patent infringement suits filed in 2014 and would have headed the list as recently as 2010.

This Article reveals the forgotten history of the first patent litigation explosion. It first describes the rise of large-scale patent enforcement in the middle of the nineteenth century. It then draws on new data from the archives of two leading federal courts to trace the development of patent litigation from 1840 to 1910 and to outline the scale, composition, and leading causes of the litigation boom. Finally, the Article explores the consequences of this phenomenon for the law and politics of the patent system. The effects of the litigation explosion were profound. The rise of large-scale patent assertion provides a new explanation for patent law’s crucial shift from common law to equity decision making in the middle of the nineteenth century. And at its height, the litigation explosion produced a political backlash that threatened to sweep away the patent system as we know it. Recovering the history of patent law during this formative and turbulent era offers fresh perspectives on the patent reform debates of today.

2. Lee Epstein (Washington University in St. Louis School of Law) and Eric A. Posner (University of Chicago Law School) have posted Supreme Court Justices' Loyalty to the President.


A statistical analysis of voting by Supreme Court justices from 1937-2014 provides evidence of a “loyalty effect”—justices more frequently vote for the government when the president who appointed them is in office than when subsequent presidents lead the government. This effect exists even when subsequent presidents are of the same party as the justices in question. However, the loyalty effect is much stronger for Democratic justices than for Republican justices. This may be because Republican presidents are more ideologically committed than Democratic justices are, leaving less room for demonstrations of loyalty.


3. Bradley Wendel (Cornell University School of Law) has posted Litigation Trolls (NYU Law School Center on Civil Justice Symposium on "Litigation Funding: The Basics and Beyond").


Third-party financing of litigation has been described with a variety of unflattering metaphors. Litigation financers have been likened to gamblers in the courtroom casino, loan sharks, vultures, Wild West outlaws, and busybodies mucking about in the private affairs of others. Now Judge Richard Posner has referred to third-party financers as litigation trolls, an undeniably unflattering comparison to patent trolls. But what it is, if anything, that makes third-party financers “trolls”? Legal claims are, for the most part, freely assignable, the proceeds of claims are assignable, and various strangers to the underlying lawsuit, including liability insurers and plaintiffs’ contingency-fee counsel, are permitted to have an economic interest in the outcome of the litigation. On one view, therefore, third-party litigation investment is just another innovative financial product that enables risk to be carved up and allocated more efficiently. Life insurance, attorney contingent fees, and derivative contracts on exchange-traded commodities were all formerly regarded with extreme suspicion, but are now widely accepted. But people still hate patent trolls. So whether litigation funding is some kind of conceptual anomaly is an important question because, as it happens, Posner’s dictum coincides with a public-relations campaign by the U.S. Chamber of Commerce to stigmatize third-party litigation financing and saddle the industry with new and burdensome regulations. This short paper evaluates the conceptual critique of litigation financing by comparison with two other areas in which it is claimed that some form of financing “just doesn’t sit right” in light of the nature and function of the legal system – patent trolling and contributions to judicial election campaigns.

December 14, 2015 in Federal Courts, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Tuesday, December 1, 2015

Today's SCOTUS Decision on the Foreign Sovereign Immunities Act

Today the Supreme Court issued its first opinion in an argued case this Term: OBB Personenverkehr AG v. Sachs. In an opinion by Chief Justice Roberts, the Court unanimously held that a lawsuit against the Austrian state-owned railway was barred by Foreign Sovereign Immunities Act. From the opinion:

Respondent Carol Sachs is a resident of California who purchased in the United States a Eurail pass for rail travel in Europe. She suffered traumatic personal injuries when she fell onto the tracks at the Innsbruck, Austria, train station while attempting to board a train operated by the Austrian state-owned railway. She sued the railway in Federal District Court, arguing that her suit was not barred by sovereign immunity because it is “based upon” the railway’s sale of the pass to her in the United States. We disagree and conclude that her action is instead “based upon” the railway’s conduct in Innsbruck. We therefore hold that her suit falls outside the commercial activity exception and is barred by sovereign immunity. 

Our earlier coverage is here.



December 1, 2015 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, November 30, 2015

Steinman on Spokeo, Inc. v. Robins

In another recent essay on Spokeo, Inc. v. Robins (see also here and here), Professor Joan E. Steinman (IIT-Chicago-Kent College of Law) has posted on SSRN her article, Spokeo, Where Shalt Thou Stand?  This article is forthcoming in Vanderbilt Law Review, Vol. 68 (2015).


This essay analyzes three distinct issues raised by Spokeo, Inc. v. Robins and considers where the Court will stand on each of them. First, I consider whether the Court will decide the question on which it granted certiorari: "[w]hether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute?" I explain why the Court might dismiss its writ of certiorari as improvidently granted. Second, I address whether Spokeo, Inc. or Robins has the better of the argument concerning Robins’ standing to sue. I opine that the Court’s decisions regarding standing in disputes concerning informational rights and wrongs indicate that it should find that the injury alleged by Robins is sufficiently concrete to confer Article III standing, and that Robins also satisfies prudential standing doctrines. Finally, I argue that the Court should not be dissuaded from so holding by the fact that the suit was brought as a class action.


November 30, 2015 in Standing, Supreme Court Cases | Permalink | Comments (0)

Hessick on Understanding Standing and Spokeo, Inc. v. Robins

Professor F. Andrew Hessick (University of Utah - S.J. Quinney School of Law) has posted on SSRN his article, "Understanding Standing."  The article is forthcoming in Vanderbilt Law Review En Banc.


Spokeo, Inc. v. Robins, which is before the Supreme Court this term, poses a fundamental question of Article III standing: Does a person have standing to sue to seek redress for the violation of a substantive statutory right, even if he did not suffer any factual harm from the violation of that right?

Standing is one of the doctrines that define the power of the federal judiciary. Federal courts cannot hear all disputes. Instead, Article III authorizes them to resolve only “cases” and “controversies.” The Supreme Court has interpreted those terms to authorize federal courts to resolve only those disputes that were “traditionally amenable to, and resolved by, the judicial process.” This restriction, the Court has said, is critical to maintaining the separation of powers. According to the Court, standing enforces these limits on the judicial power.

Despite standing’s importance to maintaining the federal judiciary’s proper role in the federal government, the Court has been inconsistent on what a plaintiff must show to establish standing. Some cases say that the violation of an individual right is enough; others suggest that a factual harm is required. That inconsistency underlies the standing dispute in Spokeo. If the purpose of Article III standing is to protect the separation of powers by restricting federal courts to resolving only those disputes that courts historically could hear, the answer to that question is clear: the violation of a legal right alone should support Article III standing.

November 30, 2015 in Standing, Supreme Court Cases | Permalink | Comments (0)